SUPREME COURT, NAPIER.

Daily Telegraph (Napier), Issue 3267, 21 December 1881, Page 2

SUPREME COURT, NAPIER.

CIVIL SITTINGS.

TUESDAY DECEMBER, 20.

(Betore His Honor Mr Justice Richmond, and ft

special jurj)

BANK OF N Z. V. COMMON AND D E-AUTOTJHJ

Examination of Mr Matthews by Mr Rees continued : Witness could not say from whom the agent of the bank received possession of the paddock in whi_h the sheep were when distrained upon. On April 11th, the day on which the defendants were alleged to have taken the sheep, they were the property ot the bank. At the time of tbe removal they were in the possession of tbe bank's servants. Witness learned that the sheep had been seized on behalf of Wi Pere on April the 2nd. He heard they, were sold by public auction, under the alleged distraint of Wi Pere. He learned on March 28th tbat the sheep had been seized under the bank's distraint. He heard of tbe seisure by Pekakerekere and failed in bis endeavor to get those, but received an order from the trustee ia the bankruptcy estate to hand over the 1800 sheep. When he tried to get that balance he heard they had been seized by Wi Pere. He wished to remove the 1800 because of tbe seizure of the 350, aud to prevent any possible seizure of others. The suspiciousness ot the whole matter made him anxious to get the »beep away. He received a deed conveying the interests of Hardy and wife in the block to the bank. He was aware that Hardy occupied a considerable portion of the land round bis bouse. He was aware that Hardy and wife claimed two shares. As manager of the bank he claimed what the deed conveyed— two shares in the Makauri block. So far as the bank's interest went Hardy had been given permission to occupy tbe house. Witness was aware tbat the paddock is

which tbe sheep were distrained was a portion of the block claimed by Pekakerekere and leased by him to Hardy.

The witness was further cross-exa-mined by Mr Carlile. Several other witnesses were then called and examined at considerable length, which closed the case for the plaintiff). Mr Rees offered two or three legal objections, which were overruled. He then proceeded to open the case for the defence. He said that the land on which the sheep were when seized belonged to Wi Pere and other natives whom Wi Pere represented, and they had leased it to Hardy. The rent having fallen in arrears, Wi Pere was perfectly justified in distraining upon the sheep. Mr Josiah Hamlin was here sworn in as interpreter, and Wi Fere was examined by Mr Rees, and Mr Travers. He deposed that he bad leased the paddock known as Peka's paddock to Hardy, who bad possession of the land since January, 1874. The land belonged to witness and other native grantees. Witness had the whole management of it. Hardy bad bad undisturbed possession ot tbe land for some years on the strength of the lease which witness gave him. Hardy was to pay £100 for the first six monthp, and £150 for the next six months. In 1876, 1877, and 1878 Hardy was to pay £300 a year. In 1879 they agreed for £200 a year, and that rental was kept up till the time of the bankr up cy. After the examination of Wi Pere, Mr Rees suggested an adjournment. He had several other witnesses to call, and it would not be possible to get through the case to night. His Honor said the difficulty was— ■where was Wi Pere's legal estate ? Tbe very reasonable arrangements among the Maoris themselves did not constitute a legal estate. After some discussion bis Honor said he had only mentioned that legal doubt to see if Mr Rees had any way out of it. It seemed to him that tbat was an insujterahje difficulty. expressed himself quite willing to adopt the course taken in Pekakerekere's case—to have the damages fixed and leave everything else open to a motion. Mr Rees said he was only anxious to get as much evidence as possible on the records so as to make his case stronger. Mr Travers added that the question now was one of value. Ultimately it was agreed to adjourn the case till 10 o'clock the following morning, an endeavor to be made in tbe meantime to settle matters with the object of merely getting the jury to assess damages, and leave tbe legal points for the higher Court; efforts to be also made to make the evidence serve in the case of the Bank of New Zealand against Wi Pere. The Court then rose. THIS DAY. His Honor took his seat at 10 a.m. BANK OP N Z. V. COMMON AND DE LATOUR. This case was resumed this morning. In answer to His Honor, Mr Rees said it would be necessary for him to call a few witnesses on bis side. He would, however, make the examination as short as possible. His Honor said, with reference to the proposal made yesterday that the evidence in the present case be used in the suitagainst Wi Pere, he thought, as the evidence before him was of so conflicting a nature, such a course would unadvisable. It might be better also to have the benefit of a fresh jury to hear the second case. Those jurors who been summoned on that panel might retire until 2 o'clock in tbe afternoon, when he hoped the Court would be able to take up Wi Pere's case. Alex. McKenzie, examined by Mr Nolan, deposed that on April Bth he had an interview with Mr Matthews, agent of the Bank of New Zealand, Gisborne, who asked bim to look after some of Hardy's sheep. On tbe Friday he accompanied Mr Ward, the bank's solicitor, to take charge of the sheep. Tbe sbeep were sold at auction, and knocked down to witness on behalf of the bank at 6* 6d each. After the sale he did not settle up for the sheep. Mr Ward told him not to sign any papers or pay any deposit. The day after the sale tbe sheep were not ia tbe paddock. On Saturday he was at Waerangi-a-hiki, ■where he saw Mr Matthews. Mr Common was there, and Mr DeLautour also. He had instructions for tbe delivery of the sheep. He next sawflMr Matthews on Sunday evening, first at the bank, and then at tbe Albion Club Hotel. Mr Matthews told bim to go up and take a certain mob of sheep out of the paddock. He was instructed to get tbera out, and have thero all Temoved if possible. He was authorised to give the man who was in charge so much to get them out. He did not see the man, but took as many as he could get. This would be at about 12 o'clock at night. He received the letter produced from Mr Matthews on Sunday night. Mr Matthews said he would send another letter by Mr Ward to witness, but witness never bad it handed to him ; there was a nortion of the letter read out to him. Thii was on Friday, the Bth. He could not recollect any portion of tbat letter. Tbe sheep were not all ear-marked alike. Witness knew tbe sheep well, and had been in charge of them ever since. They are worth 7s each. He was in charge of tbem at Te Aral, where the pasture was good. Witness looked after the shearing ; they sheared at about 5£ lbs. per sheep, or 16 bales to 900 sheep. They were mixed sheep of good and inferior breeds. By Mr Rees: Tbe person in charge of the sbeep, referred to in Mr Matthew's letter to witness, was King. He was also told verbally to go and see King about tbe sbeep. He was to offer King nothing if King would give them for nothing, but in case he refused witness was authorised to give a sum of money. By Mr Travers: He would not have given £100. He had not £100 to give. The bank left it to his discretion to give what be thought right. He had no authority to offer any specific sum, nor did he "offer anything. He did not oiler anything because he did not see the man. Witness was at present in tbe employment of Mr Common and Mr Irvine. On the 9th Mr Ward asked for delivery of tbe sheep on the road, but could not say if Mr Ward offered payment. The auctioneer refused to deliver them on the road. By Mr Nolan : Had the sheep been delivered on tbe road the bank was going to seize the sheep. James King was called, but failed to put in an appearance. Cecil Albert DeLautour deposed that on April Bth he was on the gronud when Pitt and Bennett sold tbe sheep. They were in tbe possession of James King and another at that time. The following Monday the sheep were still in James King's charge prior to being taken out on tbe road. Personally witness had nothing to do with removing tbe gate—that is, he did not do it with his own hands. He told King to remove it. He did not remember receiving any papers from the bank. It was on April 2nd that King took possession of the sheep under distress. King was in

actual possession of the sbeep on the Friday when witness went out, also on the Monday following. Witness had the sbeep valued by three valuers. Witness considered them worth from Gs 61to 7s each. The sheep were mixed clas"es. Witness was present at the sale. The bidding ran up rapidly to 6V. when McKenzie bade 6* 6d. Mr Ward was at McKenzie's elbow, and said something to bim when McKenzie bid 3J higher, at which the auctioneer demurred, an'! fioally the sbeep were knocked down ar 7->. Witness went upon the land by Wi Pere's authority on the Saturday and the Monday. There were several locks on the gate of the sheep paddock on Monday which bad been put on by various parties. After the sheep inspector had given his certificate that tbe sheep might be delivered on Monday King took his locks off the gate. The sheep were sold on April B'h by virtue of a distraint obtained at the suit of Wi Pere. They were seized on tbe 2nd April. (Left Sitting.)